Environmentalists Win Lawsuit To Protect Summer Flounder

Siding with four conservation groups, the U.S. Court of Appeals for the District of Columbia Circuit yesterday struck down the 1999 federal fishery quota for summer flounder, a commercially and recreationally valuable fish that is fished along the Atlantic coast from Maine to North Carolina and is consumed by seafood lovers far and wide. The court termed the quota “unreasonable, plain and simple.”

“Yesterday’s ruling is a clear victory for summer flounder and for troubled fish stocks across the country,” said Sarah Chasis, attorney for the over 400,000 member Natural Resources Defense Council (NRDC), a lead plaintiff in the case. “Federal fishery managers can no longer choose to ignore their statutory duty to protect and rebuild our precious marine resources.”

Summer flounder, also known as fluke, has been overfished for years. According to the government’s own assessment , the current population of flounder is less than 50 percent of what it should be. In January 1999, NRDC, Environmental Defense, National Audubon Society and Center for Marine Conservation filed suit, charging that the National Marine Fisheries Service (NMFS) violated the Magnuson-Stevens Fishery Conservation and Management Act (MSA) by setting a 1999 summer flounder quota that had less than a one in five chance of preventing continued overfishing of the summer flounder stock. The Washington, D.C.-based Ocean Law Project, an initiative of the Pew Charitable Trusts, represented the groups.

In a unanimous ruling overturning an August 1999 lower court decision, the court of appeals sharply criticized NMFS for setting a quota that had only an 18 percent chance of achieving the required fishing rate set in the agency’s own plan, saying: “Only in Superman Comics’ Bizarro world, where reality is turned upside down, could the [National Marine Fisheries] Service reasonably conclude that a measure that is at least four times as likely to fail as to succeed” complies with the law.

The court order requires NMFS to develop quotas that have at least a 50 percent chance of attaining a fishing rate that will stop overfishing and rebuild the stock. The federal appeals court also made clear that under the Magnuson-Stevens Act NMFS “must give priority to conservation measures.”

“Setting a quota with only an 18 percent chance of success was completely absurd,” said Andy Cooper, a fisheries scientist with the National Audubon Society. “Requiring the quota to have at least a 50 percent chance of hitting the annual rebuilding target is a monumental step forward in responsible fisheries management.”

The benefits from the court ruing should be considerable. “With this decision the recovery of summer flounder can finally begin in earnest,” Dan Whittle, senior attorney at Environmental Defense, pointed out. “A speedy and full recovery not only benefits the resource and entire ecosystem, but fishermen as well. When stocks are fully rebuilt, commercial and recreational fishermen up and down the Atlantic coast will be able to catch up to three times the 1999 quota every year.”

“The court’s ruling sends the clear signal that conservation of our public ocean resources should be more than just a fluke,” said Sonja Fordham, fisheries project manager for the Center for Marine Conservation. “The judge concluded that the government’s overly optimistic, scientifically-unsupported assumptions are insufficient to justify risky public policy. This type of shift in the burden of proof is exactly what is needed to turn the tide and restore the health of fish populations nationwide.”

“We are very pleased that the court has ordered NMFS to do what the law requires, namely to prevent overfishing,” stated Monica Goldberg, attorney for the Ocean Law Project of the Earthjustice Legal Defense Fund.